Appellant makes complaint of our former opinion for saying that a witness swore that appellant's shoes would make the kind of tracks found on the ground after the killing. Constable Benson swore that he examined the tracks around the place of the homicide; that he saw in the yard at said place two tracks made by the right foot shoe; that said track was made by a shoe with a rubber heel and a toe not pointed nor yet blunt, about a number nine shoe. He said the shoes of deceased did not fit these tracks. Referring to appellant's shoes, witness said they would make the kind of track he saw, but he would not say the tracks were made by appellant's shoes, nor that the shoes that made the tracks were worn by appellant, but that said track was made by a shoe of the same pattern as those worn by appellant. We find nothing in the cases of Clifton v. State, 47 S.W. Rep. 642; Warren v. State, 106 S.W. Rep. 132; and Hartfield v. State, 281 S.W. Rep. 555, which go further than to hold that a conviction, under circumstances detailed in each of those cases, would not be sustained under their facts even though there was evidence of tracks in each of some similarity to those made by shoes of the accused, which tracks had guilty significance. In the case before us the tracks examined and testified to were sufficiently described and identified, and such testimony was before the jury for what it was worth, but the State proved by two witnesses who were present at the time of the shooting that they heard the shot and saw appellant running away. As supporting motive, it was shown that deceased *Page 631 was going with the wife of appellant from whom the latter was temporarily separated.
The opinion is further assailed for saying that appellant carried both a shotgun and a rifle to the house of McCarter on Wednesday night before the Sunday night of the killing, which also took place at McCarter's house. The opinion is correct in its statement. We quote from McCarter's testimony: "Jim Curtis stayed at my house Wednesday night. * * * When Jim came there Wednesday * * * he came with two guns, a Winchester and a shotgun." The Jim Curtis referred to was appellant.
The only two bills of exception found in this record are based upon complaints set out in certain divisions of the motion for new trial, and one of same relates to the admission of testimony, and the other to the lack of testimony. Such bills of exception are of no avail. A bill of exception to the introduction of testimony must show that the objections were made at the time the testimony came from the witness. It can not be based on the motion for new trial in setting out that the court erroneously admitted such testimony. The sufficiency of the testimony is raised by the appeal, and a bill of exception making such complaint is not necessary.
The motion for rehearing will be overruled.
Overruled.